On Tuesday, E. Jean Carroll’s second defamation trial begins. Carroll sued Donald Trump for defamation after he accused her of lying about sexually abusing her in a dressing room at Bergdorf Goodman’s in the mid-1990s, a claim for which a jury already found him liable last year. Although it was the first of two defamation cases against Trump to be filed, “Carroll I,” as it has been named, was initially delayed from being presented to a jury because of attempts by Trump to have it dismissed on technical legal grounds. But after a tortuous appellate journey, Carroll I survived to see another day. And now it’s ready for trial.
Carroll is seeking $10 million for harm to her reputation, as well as an unspecified amount of punitive damages.
And for E. Jean Carroll, Carroll I, filed in 2019, has become somewhat of a legal lay-up. That’s because the presiding federal judge, Lewis A. Kaplan, ruled in September that because of a jury’s verdict in Carroll’s other defamation case that was filed in 2022 (referred to as “Carroll II”), Trump cannot argue that he did not defame Carroll. In fact, the only thing left now for a jury to decide in Carroll I is how much to award Carroll for the damages she suffered as a result of Trump’s defamation of her in 2019, when he was president. In the interest of full disclosure, I am good friends with Carroll. Regardless of our friendship, my legal analysis is based on the facts and case law.
Here’s a quick breakdown of the two cases:
Carroll I:
Filed by Carroll in November 2019 for defamatory statements made that year by then-President Trump, after Carroll came forward publicly with allegations that he had raped her in the mid-1990s. Because he was president at the time of the defamation and because then-Attorney General William Barr sided with Trump that he was acting within the bounds of his office when he made the defamatory statements, the Barr Justice Department inserted itself into the lawsuit on behalf of Trump, pursuant to a federal statute called the Westfall Act. If the DOJ’s substitution had proven to be successful, Trump would have been immune from Carroll’s civil claims and Carroll I would have been dismissed. Kaplan, however, rejected Trump’s defense and, eventually, the DOJ (under Attorney General Merrick Garland) reversed its position and determined that Trump was making his 2019 defamatory statements about Carroll in his personal capacity with no purpose to serve the U.S. government. The DOJ then withdrew its substitution in the lawsuit, leaving Trump to defend himself. Carroll is seeking $10 million for harm to her reputation, as well as an unspecified amount of punitive damages.
Carroll II:
Filed in late 2022 for defamatory statements made by Trump in that same year. Carroll II also included a claim for sexual assault, brought under the New York Adult Survivors Act. As Carroll I was winding its way through the appellate court system, Carroll II went to trial in May last year, with a jury deliberating for only about three hours before returning a verdict in Carroll’s favor on all counts. The jury found that Trump’s 2022 defamatory statement about Carroll was a lie and was made with actual malice. The jury also found Trump liable for sexually abusing Carroll. Carroll was awarded $5 million in damages: $2.02 million in compensatory and punitive damages for her battery claim and $2.98 in compensatory and punitive damages for her defamation claim. Trump has since appealed this verdict.
Effectively, because a jury of his peers has already determined that Trump lied in his 2022 defamatory statement about Carroll, and because that 2022 defamation is substantially the same as the 2019 defamation, the court ruled that the first jury’s findings of fact and determination of Trump’s liability control his liability in his second trial (Carroll I). Again, this means the only thing left for the jury to decide this week is the amount that Trump must pay Carroll in damages.
The legal theory that allows for this streamlining of Carroll I is called “collateral estoppel,” which is also referred to by lawyers as “issue preclusion.” It’s the idea that once an issue between parties has already been litigated and a final judgment has been entered, those parties are bound by that first judgment on the issue and re-litigating it is not permitted. As Kaplan wrote in his opinion granting partial summary judgment in favor of Carroll, “the jury considered and decided issues that are common to both cases.” Thus, in the case of Carroll and Trump, because a jury in her first trial found Trump liable for defamation and sexual abuse, he cannot now present a defense in his second defamation trial to relitigate these issues.
Trump has already tried to convince Kaplan to cap Carroll’s damages to the $5 million verdict that was rendered last year in Carroll II. His argument was that the second jury this week should be bound by the first jury’s decision on the amount. But Kaplan denied that move and said that Trump was trying to “mix apples with oranges.”
To make matters worse for Trump, he appears to have failed to learn his lesson from his first courtroom battle with Carroll as he continues to defame her.
In short, Trump’s damages exposure doesn’t look good at all. Carroll's damages expert witness, professor Ashlee Humphreys, already testified in the writer's first trial and a jury found her testimony to be compelling and credible. Since the Carroll II trial last year, Humphreys has also testified as an expert witness in another highly publicized defamation case — Ruby Freeman and Shaye Moss against former Trump lawyer Rudy Giuliani — and that trial resulted in a $148 million verdict against Giuliani. Trump tried to muzzle Humphreys and Kaplan shot down that move, too.
To make matters worse for Trump, he appears to have failed to learn his lesson from his first courtroom battle with Carroll as he continues to defame her. Just a few days ago, he shared a barrage of 31 posts in about 30 minutes on his social media platform, Truth Social. The posts were not written by Trump, but instead were shared comments, interview clips and social media posts by others that disparaged and attacked Carroll. Not content to allow others to berate Carroll, Trump has also attacked her on television and even while on the campaign trail. Even Tuesday morning, before arriving at the federal courthouse, Trump posted on social media what appears to be yet another potentially defamatory statement about Carroll. His offensive conduct has been covered widespread by the media, which means a very high probability that prospective jurors have also heard and seen his repeated defamation of Carroll, which always presents its own challenge.
Trump reportedly arrived in New York on Tuesday, where he says he will testify in his own defense in Carroll I. Recall he also claimed that he was going to testify in Carroll II and he was a no-show. For what it’s worth, even if he were to appear, it would likely be an unmitigated disaster for him. We witnessed Trump’s version of “testifying in his own defense” during the closing arguments of the New York attorney general’s civil fraud trial. His rambling diatribe, during which he whined that he was the true victim in that case and verbally attacked Letitia James, certainly didn’t help his case. The presiding judge, Justice Arthur Engoron, complained to Trump’s lawyer about not controlling his client.
If Trump tries to pull any stunts before Kaplan, who runs a very, very tight ship, the former president could be looking at being held in contempt. In Carroll I, there’s no leeway for theatrics or drama by Trump — in Kaplan’s own words, “no do-overs allowed.” This means Trump appearing for this trial will most assuredly just be adding more zeros to that jury verdict.
